185 A.D. 685 | N.Y. App. Div. | 1919
The plaintiff is the receiver of the property of Joseph Polansky in supplementary proceedings. The defendant Joseph Polansky had been running a restaurant at 638 Sixth avenue. At 630 Sixth avenue there was another restaurant which was a rival of Polansky’s restaurant and reduced his income apparently to a point where there was no profit. Goldberg was a friend of Polansky and was induced by Polansky to buy out this restaurant at 630 Sixth avenue, and he and Polansky started in jointly as partners to run this business at 630 Sixth avenue. Polansky had become liable upon a long lease of 638 Sixth avenue upon which he was now defaulting, and Goldberg also had some liabilities, so that they consulted a lawyer as to what arrangements could be made to protect them against liability to creditors. This lawyer advised the formation of a corporation which was afterwards formed with forty shares of stock. Goldberg and Polansky each took one share and to each of their wives were given nineteen shares. This transfer to the wife of Polansky of these nineteen shares is what is claimed to have been a fraudulent transfer which is here sought to be set aside.
There is abundant evidence here of the fraud of Polansky in procuring the issue of the stock to his wife. Polansky had become liable upon this long lease and was intending to
With the fraud of Joseph Polansky established and with all the circumstances pointing to the fact that Esther Polansky was cognizant thereof, it fairly rests upon her to offer herself as a witness and her failure to take the stand to assert her innocence should in this case be construed as an implied admission on her part of knowledge of such fraud. If she were a bona fide creditor of her husband and were making a demand for the payment of what he owed to her she could easily have sworn to those facts.
The judgment should be reversed as against the evidence and a new trial granted, with costs to appellant to abide the event.
Dowling, Laughlin, Page and Shearn, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.